On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0181.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2009
Before Judges Cuff and Baxter.
Following a jury trial defendant William Roberts was convicted of one count of third degree burglary, N.J.S.A. 2C:18-2. Three counts of burglary were dismissed prior to trial and one count of possession of a motor vehicle master key was dismissed at the close of the case. Defendant was sentenced to five years imprisonment.*fn1 The appropriate penalties and assessments were also imposed.
On October 20, 2005, Jersey City Police Officers John Ransom and John Joy were patrolling a ten block area between Belmont Avenue and Journal Square and between Westside and Bergen Avenues in Jersey City. It was an area with a history of many motor vehicle and residential burglaries. The officers were dressed in plain clothes and drove an unmarked vehicle. Officer Ransom drove; Officer Joy rode in the front passenger seat.
As the officers approached the intersection of Kennedy Boulevard and Fairmount Avenue, they spotted defendant exiting the passenger side of a Nissan Altima with New York license plates parked at the southeast corner of Fairmount Avenue and Kennedy Boulevard. Officer Ransom noticed defendant rummaging through items on the front seat.
Officer Joy got out of the car and followed defendant on foot. When he approached the Nissan, he looked inside. He saw an open glove box and items strewn about the front seat. Officer Joy requested a motor vehicle look-up, directed Officer Ransom to Duncan Avenue, and followed defendant on foot to an apartment building at 37 Duncan Avenue.
Officer Joy remained outside 37 Duncan Avenue. Twenty or thirty minutes later, defendant emerged from the building walking briskly. As defendant walked eastbound on Duncan Avenue to Bergen Avenue, Officer Ransom took over surveillance of defendant.
Ransom, with the aid of Jersey City Police Officers Morgan Torres and Rob Majori, arrested defendant on Monticello Avenue between Fairmount and Jewett Avenues. Officer Ransom patted down defendant and found a twelve-inch screwdriver, a set of automobile keys, and two bent plastic cards.
Officer Joy opened the Nissan using the keys found on defendant. Through a piece of mail found in the vehicle, the officer went to an apartment on Fairmount Avenue occupied by Adil Chenrhaoui. The officer advised Chenrhaoui of the burglary of his vehicle and asked him to accompany the officers to his car. Officer Joy used the key found on defendant to open and start the vehicle. Chenrhaoui used his key to do the same. Neither the officer nor the owner observed any damage to the Nissan's windows, locks, or ignition.
Chenrhaoui testified he and his wife held the only two sets of keys to the Nissan and that the key Officer Joy used to open and start the Nissan was "different" than the keys he and his wife held. Chenrhaoui also testified that the glove box was closed and papers and CDs were not strewn across the front passenger seat when he left the car. Chenrhaoui did not know defendant and had not given defendant permission to enter his vehicle.
Defendant testified at trial. He stated that on October 19, 2005, he was in the area of the A. Harry Moore Housing Project near Duncan Avenue, Jersey City, because he was visiting his girlfriend. He left his girlfriend's home around 2:30 p.m. the next day and walked toward Kennedy Boulevard. While he was walking, he called another female friend, "Shorty," who invited defendant in to visit her at 32 or 37 Duncan Avenue. While defendant was visiting Shorty, defendant's sister called to say she had lost her car keys and had parked her car at Summit Avenue and Astor Place. Defendant left 37 Duncan Avenue and sat on a wall on Duncan Avenue to instant message his friend to help him with the car. Defendant then began to walk toward Monticello Avenue, where he was arrested.
Defendant denied ever being on Fairmount Avenue that day and denied ever having seen the Nissan Altima. Defendant explained that his sister's car was a Nissan Maxima and the Nissan keys seized by Officer Ransom were the keys to his sister's car. Defendant testified that because the police took his keys, he had to pay $200 to have a new set made "by Acura." Finally, defendant testified that ...